COURT II CASE IX Then we will get a clarification of this.
A. In my opinion this declaration was a made in order to create an impression.
Q. But not to be obeyed literally?
A. That depends on the circumstances.
Q. Well, let us suppose a situation where your superior officer tells you that the situation is such that the only way we can get out of it is for you to shoot your parents. Now that's an order. All right, now, are you going to live up to William the first or William the second, or not?
A. In this situation it would have to be obeyed, Your Honor.
Q. You would shoot your own parents if the situation required it?
A. In so far I would have my psychological reaction, and I do not know whether based on this psychological reaction I carry out the order which has to be obeyed or whether I subject myself to punishment.
Q. Now you must answer the question. If the military situation is such that the only way you can be saved according to what your officer tells you is to shoot your parents, will you shoot them or not?
A. I cannot answer such a question, Your Honor, in such a short time. That is a psychological struggle that I am not in a position to say yes or no.
Q. Would you be ready to answer it tomorrow morning?
A. I don't know, Your Honor.
Q. Well, we will give him until tomorrow morning to think it over. at nine-thirty.
(The Tribunal adjourned until 20 November 1947 at 0930 hours.)
THE MARSHAL: The Honorable, the Judges of Military Tribunal No.II Military Tribunal No. II is now in session. God save the United States of America and this Honorable Tribunal.
DR. HOFFMANN (Attorney for the defendant Nosske): Your Honor, I should like the defendant Nosske to be excused this afternoon and during the whole day tomorrow in order to be able to prepare his defense.
THE PRESIDENT: The Defendant Nosske will be excused from attendance in court this afternoon and all day tomorrow, in order that he may confer with his counsel.
Dr. Gawlik, yesterday afternoon, just before the adjournment, the witness was being examined on a matter which was mentioned by you and by him and we will refer to that examination. BY THE PRESIDENT:
"Q Witness, I am now reading from the transcript of yesterday's session, on page 5 of Take 23 appears the following: "By Dr. Gawlik:
"Q Witness, do you remember a proverb said by a German Kaiser concerning the carrying out of orders by soldiers?
"A I do not know whether it was William I or William II, but certainly one Kaiser-Emperor used the expression, 'If the military situation or the entire situation makes it necessary, a soldier has to carry out an order, even if he has to shoot his own parents'". Now, Witness, you are a German soldier, are you not, or, were?
of the German Empire at the time, the military situation made it necessary for you, after receiving an order to that effect from a superior officer, to shoot your own parents, would you do so?
A Mr. President, I would not do so. which may be disobeyed? State but as a symbolic example towards the whole soldiery how far obedience had to go, but never actually asking a son to shoot his own parents. I imagine it only as follows, Your Honor; if I am an artillery officer in the war and I have to fire at a very important sector, which is decisive for the whole military situation and I receive the order to fire at a certain village and I know that in this village my parents are living, then I would have to shoot at this village. This is the only way in which I can imagine this order, but never -- it is inhuman -- to ask a son to shoot his parents. the line, you would disincline to obey it. You would not obey it. someone else, let us say, a Jew and his wife, and in your view you see the children of these parents. Now, it is established beyond any doubt that this Jewish father and Jewish mother have not committed any crime, absolutely guiltless,blemishless. The only thing that is established is that they are Jews and you have this order coming down the line to shoot these parents. The children are standing by and they implore you not to shoot their parents. Would you shoot the parents? Jews indiscriminately did not have to be obeyed by the German soldiers in your estimation?
war, in the combat against Bolshevism, in which two countries fight each other and try to destroy each other and disregard all customs of war and all laws of war - and they were disobeyed on both sides in the totality of this event it was a matter of life and death, which was said quite clearly on both sides; now, in the totality of this event an order by the Supreme Commander is given; in that case it must be carried out by the soldiers, Your Honor, but I would never have carried out an order if the order had been given to me to shoot these parents, just because they were Jews.
Q Yes, now you had a certain rank in the German Armed Forced. You were a Lt. Colonel, was it? rank in the SS was Lt. Colonel?
Q You were a full colonel, is that right? A full colonel is a very high rank in the Armed Forces. It is next to General. a colonel as an official and a colonal as an active officer. I had never had the training nor the ability, for that matter, to be an active colonel and I was never promoted to such or, at least, comparable to one in the active Wehrmacht.
Q But you had the training as a German officer? that is an order were submitted to you, coming down the line militarily to execute two innocent parents only because they were Jews, you would refuse to obey that order?
A Your Honor, I answered your example affirmatively. I said, "Yes, I could not have obeyed."
THE PRESIDENT: Very well, you may proceed, Dr. Gawlik.
BY DR. GAWLIK: in the cross-examination. I want to confirm this quite clearly for the record. Did you have to pass on any order from General Schober to Ohlendorf? he was arresting hostages in order to shoot them under the slightest pretext.
Q That is enough. That will suffice for your answer. By whom were these hostages to be arrested?
A He did not say that. He said, "I shall have hostages arrested."
Q I now come to another point. To whom was the order given, Ohlendorf's order, that the figures were not to be exaggerated? could only be directed to the kommando leaders in whose kommandos orders had to be obeyed.
DR. GAWLIK: I am sorry, Your Honor, it is from Document Book III-D, page 72 of the German, Document NOKW-628.
Q (C ontinued* That, as I say, was mentioned again and I have a few questions to put in connection with it. May I just have the document handed to you? the G-2, which you were asked about in the cross -examination.
DR. GAWLIK: It is page 1 of the original, Your Honor.
Q (Continued): Was it necessary that you give your approval to the agreement between the Special Kommando 10-B and the G-2? report that the Crimea was actually cleared of Jews was correct?
Q What was your task? have them passed on to the offices to which they went. Communists. Was it your task to check up for what reasons these Communists were made harmless? showed that in Luki the inhabitants were being taken, care of, was it your task to take care of the accommodation of the inhabitants of the village of Luki? action to be carried out. housing of these inhabitants?
A I would have only found out about it after weeks. I would not have had the possibility before. of the original, II, the report about the further assignments which were planned. Was it your task to order the further assignments of the kommandos?
MR. WALTON: May it please the Tribunal, the prosecution desires to object to the form of the questions. He is putting the answer in the witness mouth. While this was gone over and I know he has the right to recover it in redirect examination, to ask a question, "Was it your task to make future assignments with the Einsatzgruppe", to me it seems the proper form of the question would be. "What was your task with regard to the future assignments".
DR. GAWLIK: May I now say something, Your Honor? As far as I am informed, a question that can be answered with yes or no is not a leading question.
I must here guide the witness, If I put the questions as it is suggested by the prosecutor, "What was your task", in that case, of course, it will take the witness a half an hour to answer it, and it is only in the way of completing the story and a matter of saving time. Otherwise there would be no possibility to guide the witness.
THE PRESIDENT: Dr. Gawlik, you are laboring under a very serious misimpression if you think that the test of a leading question is whether it can be answered yes or No. That is not the test, and I will give you an illustration. Suppose I say to you, "Dr. Gawlik, are you a smart and brilliant lawyer?" I would naturally suggest the answer which would undoubtedly be correct and would be yes. It is not the test if it can be answered yes or no. The test is whether the question in itself suggests the answer, and, if you say to your client here that "Was it your duty to make assignments for these kommandos", in view of what has already been stated with regard to this defendant, it is very obvious what the answer should be, so far as you are concerned. You must not suggest to the witness the answer. Gawlik. You covered that in your direct examination. The witness had an opportunity to explain further in cross-examination. Now nothing is served in going over it again. If, in the cross-examination, some doubts have arisen which need to be clarified, then you may direct your question to those doubts. Figure 2 had not been accepted?
A You mean, not accepted by the Army?
cerning your own activity in this report. Do you have anything to add to your answer which you gave during your cross-examination.
A May I just ask for one moment, I haven't the report in front of me.
Q I shall put the question a different way: In what reports did you report about your activity? my activity as the Director of Department III.
Q To what authorities?
Q I now come to the point of gas vans. Did you ask for the gas van?
Who had asked for the gas van?
A I do not know. I did not ask for it.
Q Who was responsible for the upkeep of the gas van? responsible.
Q Was that one of your tasks? Did you ever give any orders for the distribution of the clothing? Who was responsible for any difficulties which might crop up, economic difficulties, that is of the Ethnic Germans? that is, in which these Ethnic German settlements were situated. obtain clothing for Ethnic Germans? because that was not within the field of activities of an intelligence officer.
Q. I now come to the point: Valuables. Did you ever take part in collecting watches and valuables?
A. No. I never took part in it.
Q. Did you ever make any decisions in their distributions?
A. No. I never did. BY THE PRESIDENT:
Q? Witness, did you know about the watches that Ohlendorf had at headquarters, taken from executed people?
A. Yes, I heard about that.
Q. And you know what distribution was made of these watches?
A. I know that these watches were asked for by the army. They were requested in a letter, and I must assume that they were delivered to the Army, Your Honor. If and when they actually arrived, or whether the administrative officer had to report that they had been deposited at a bank - that I don't know. BY DR. GAWLIK:
Q. Now I come to the point which has been mentioned in the cross examination, which you mentioned: "Acting For", I submit to you Seibert Document 1. of the Department Chief of III-A?
A. He signed "Acting For" -- "I.V."
Q. Was he thus the representative for the whole office?
A. No, he was only the representative for his own field of activity, III-A.
Q. What was the significance of your own signature when you signed "Acting For" -- "I.V." - for the Einsatzgruppe?
A. It had the same significance which I have just now mentioned.
Q. Now I come to document NO-3414 in Document Book I, page 62, To whom is this decree immediately addressed? Please give a general answer. Not the individual agencies.
A. The decree was directed to the commanders of the Security Police and to a few state police agencies, names that are mentioned here.
Q. What does that show concerning this decree?
A. That the assignments had to be carried out by those agencies which are mentioned here.
Q. How was the decree addressed to the Einsatzgruppen?
A. To the Einxatzgruppen it went for their information.
Q. Please explain to the Tribunal what "information" means in this respect.
A. The difference wasoften made when orders were concerned; in the distribution list, it said first to this and this agency that meant for compliance; secondly, it went for information - that meant for the information of all concerned.
DR. GAWLIK: Thank you, Your Honor, I have no further questions.
THE PRESIDENT: ...Oh, pardon me. Yes, Dr. Hoffmann?
DR. HOFFMANN: Your Honor, may I now ask my questions of the witness, or shall I do so after you have asked your questions?
THE PRESIDENT: No. The Tribunal has no further questions. You may ask.
DR. HOFFMANN: Witness, the Prosecutor in the corss-examination yesterday asked you about a report which had gone to AOK II from February to March, and in which the activities of the Einsatzkommando 12 are mentioned, Do you remember that?
A. Yes.
Q. In this report it says that because of bad conditions due to snow, AOK 12 could not go into action, but that its activities would be resumed very shortly. Do you remember that?
A. Yes, I remember.
Q. You then pointed out that in this report, no executions are mentioned.
I now ask you, according to your own experiences.... if, in a report, no executions are mentioned concerning the period of time of the report, does that mean that no executions had taken place, or were they just not reported?
A. I can only say that from the picture I get from this report, I think it must be that they did not take place. I don't know whether this is due to an oversight or whether they were not reported for some reason, but to me it would mean that none took place.
Q. Did every Einsatzkommando leader have to report his executions, or didn't he have to do so?
A. Obviously he had to report them, not only his own executions, but he also had to report all happenings in the entire sector.
Q. In that case the leader of Kommando 12 would have acted against orders if he had not reported executions which had taken place there?
A. If in this report no executions were mentioned, and they had been carried out, in that case he would have acted against orders.
DR. GAWLIK: Your Honor, with this I have for the time being, completed my presentation of evidence in the case of Seibert. I would like to reserve the right to submit documents later.
THE PRESIDENT: That right will be reserved.
MR. WALTON: May it please the Tribunal, I should like to put a very few questions to the defendant.
THE PRESIDENT: Very well, Proceed. BY MR. WALTON:
Q. Colonel, I should appreciate it if you would turn to Document Book I, page 93 of the German, page 71 in the English, your Honors -- to Document NO-3422, which is Prosecution Exhibit 19. Will you indicate, please, Colonel, when you have found the place?
A. Page 93, Mr. Prosecutor, German text?
Q. 93.
A. Yes, I have found that page.
DR. GAWLIK: I object to this question, Your Honor.
THE PRESIDENT: He hasn't put a question yet. What question are you objecting to?
DR. GAWLIK: I object to any question that might refer to this document, because the re-cross examination-
THE PRESIDENT: You say you object to any question he might put regarding this document. Suppose the question which he will put shows that your client is innocent? Would you object to that?
DR GAWLIK: All right, I shall wait. I shall wait for that.
THE PRESIDENT: Proceed, Mr. Walton. BY MR. WALTON:
Q. This document is an Operations order which had a subsequent date than the one you have just testified was distributed to the Einsatzgruppen for information....is it not?
A. Yes.
Q. Also, this is a directive for the purging of prisoner of war camps and the transit camps containing Soviet prisoners of war -- the same subject as the other documents.....is that not true?
A. Yes.
Q. Now, right at the bottom of page one of the original it says that the Einsatzgruppen will immediately detail Sonderkommandos in appropriate strength under the command of an SS-officer....that is said in the document, isn't it?
A. Yes.
Q. Now, down at the distribution list....is this distribution made for information to the Einsatzgruppen, according to the face of the document?
A. No, Mr. Prosecutor. This is just the opposite example. The distribution list says first to the Einsatzgruppen, and the Einsatz kommandos; and secondly for information, to the higher SS and police leader.
Q. All right. Now, then, it is reasonable to suppose from the face of this document that this Operation order was sent to these named Einsatzgruppen for compliance, or for execution....is it not?
A. It becomes ecident from the distribution list that this order went to the Einsatzgruppen and the Einsatzkommandos.
Q. Did you ever see a copy of this order?
A. I have already said that I cannot ever say whether I read this particular order or not.
Q. Do you remember whether or not you ever took any action in connection with this order?
DR. GAWLIK: Your Honor, I object to this type of questioning. The questions, in my opinion, may only refer to the document which was mentioned by myself, because the re-cross examination can only refer to my re-direct examination. Only in this connection could questions be put in the re-cross examination, but these questions exceed that limit.
THE PRESIDENT: Mr. Walton, was this document referred to by Dr. Gawlik in the re-direct examination?
MR. WALTON: No, Your Honor, but this is part of the same story. It would be like referring to one paragraph in a story, and not getting the complete story.
THE PRESIDENT: Did you have the opportunity to cross-examine him on this when you had the defendant for cross-examination?
MR. WALTON: I didn't intend to go further than the question which I just asked and which he has answered. I am through at the present time.
THE PRESIDENT: Your objection is sustained, Dr. Gawlik. The witness, Willy Seibert, will be returned to the defendants' box; and the witness Biberstein will be taken to the witness box.
follows:
JUDGE SPAIGHT: Defendant, please raise your right hand and repeat after me: speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE SPAIGHT: You may be seated.
DR. BERGOLD: Your Honors, before I begin with the direct examination of the defendant Biberstein I would like to submit my Document Book. It only contains three numbers. English , has not been received by him. It has been turned ever to me, in the English, and I was told that it had been submitted to the Tribunal and, to the prosecution, and I assumed that I could rely on this.
MR. HORLIK- HOCHWALD: The Prosecution hasnot received the Document Book yet. However, if Dr. Bergold is in a position to hand the English copy to me, which possibly he has, for a short examination, I will have no objection to his presenting this Document Book now.
THE PRESIDENT: Dr. Bergold, the Tribunal has your Document Book, so there is no reason why you can't immediately proceed. Mr. Hochwald can be scrutinizing it as we go along.
MR. HORLIK-HOCHWALD I have just received a copy.
THE PRESIDENT: Yes, Yes You proceed, Dr. Bergold.
DR. BERGOLD: I submit from my Document Book, Document No. 1, Exhibit No. 1. This is an excerpt from the Defense Exhibit 52 in Case II against Erhard Milch, and concerns the examination of Mr. Neurath. Your Honor will remember that since he was present at the examination.
As Exhibit No. 2, Document No. 2, I now submit an excerpt from the German General Lexikon, that is the Encyclopedia, and waspublished in 1926, by Meyer. It concerns the types of executions which are customary in the more important states of the world. In my final plea I shall come back to that.
And as the last, No. 3, I submit Document No. 3, Exhibit 3, the affidavit of the defendant Biberstein which he gave in Eselheide. This is an excerpt which I received from the Prosecution itself. Your Honor will remember that I asked for it at the time. BY DR. BERGOLD:
Q. Witness, what is your name; when and where you you born?
A. My name is Ernst Emil Heinrich Biberstein. I was born on the 15th of February 1899 in Hilchenbach, that is in the District Siegen, in Westphalia.
Q. Did you always carry the name Biberstein?
A. No, I used to have another name. My name used to be ... I now spell it: S-z-y-m-a-n-o-w-s-k-i- , Szymanowski.
Q. Why did you change your name?
A. When I just mentioned my former name now, I spelled it in order to go the safe way. I always had to do that because otherwise this name as always misspelled. Apart from that, A German could never pronounce the name properly. I always had quite a bit of trouble with it. My family was originally German, and I knew an old German name which goes back to 938. What is more understandable than having the express wish of adopting this old family name? In 1939 there was an order issued by the Party that all foreign-sounding names should be changed into German names. This decree was not actually carried out because of the outbreak of the war. In 1941 I used a very favorable opportunity to apply for a change of name, under the pretext that I had received an order to do so. Thus it came about that my name was changed on the 9th of June 1941 by a decree of the Police President of Berlin.
Q. Were there any other reasons why you changed your name?
A. No, there were no other reasons.
Q. Who were your parents?
A. My father was a railway official. At the last he was Reichbahnrat, that means, Reich Railway Counsel, and came from an old artisan family. My mother is nee Giesler, and comes from a family of officials and farmers.
Q. Do you have any brothers or sisters?
A. Yes, I had a younger brother who was an artist by profession. As he was lame, he never became a soldier. On Christmas Eve 1943 when he tried to save victims of the bombs in Berlin, he was killed in an air attack on Berlin.
Q. What special impressions did your parents give you?
A. I was educated in a Prussian family of officials. I learned to know and to esteem all the virtues which once made Prussia one of the most orderly, and best states in Germany. I learned respect for God, obedience and faithfulness towards the State leadership, decency and honesty and conscientiousness in my profession and in my life. BY THE PRESIDENT:
Q. Why do you say, witness, that Prussia was one of the best states in Germany?
A. I said best organized, your Honor.
Q. Oh -
A. I must attach particular value to the order in public life and in the life of the population.
Q. Well, her was it better organized then Bavaria, for instance?
A. Well, it is well-known that the Prussian state was very painstaking in keeping order and organizing matters, in a manner which was not usual -- or at least not to that extent in other states.
Q. You mean it was well known in Prussia?
A. No, no.
Q. You think a Bavarian would admit that Prussia was better organized?
A. I don't know that. That is a kind of local patriotism which, of course, would not admit that this was so.
DR. BERGOLD: If I may say something, your Honor ... we Bavarians -- we were convinced that Prussia was better organized. We Bavarians are of the conviction that we lead a more cozy and freer life. That has always been our conviction.
THE PRESIDENT: In view of the admission by the Senator from Bavaria, the statement will stand uncontradicted.
DR. BERGOLD: I now return to my question, your Honor.
Q. Witness, I would advise you to put on your earphones, because suddenly a question comes from the Tribunal and you are not ready.
What schools did you go to?
A. After going to elementary shcool from 1905 to 1908 I graduated from the Humanistic Gymnasium in Muehlheim-Holstein, which is a secondary school. In 1917 I graduated, as the best in my class.
Q. What profession did you take up?
A. I intended to study Protestant Theology.
Q. What were the reasons for this?
A. From the time that I went to school I intended to do so; it had been decided by my parents that I should become a clergyman. It was the quiet wish of my mother, although It was hardly ever discussed in the family; and I respected this profession, although I was awed by it. In the secondary school I learned the Hebrew language.
Q. What did you do in spring 1917?
A. I matriculated at the University of Kiel as a student of theology, and I applied for my first semester; but on the 16th of June 1917 I was drafted into the Army and I took part in the defensive fights as an Infantryman until the end of the first World War.
Q. What effect did the war experience have on you, especially in the choice of your professional training?
A. The fact that I would have to take part in the war made me -especially during the last years of school -- conscious of establishing a particularly intimate relation to God. I remember extremely well my experiences and my feelings at that time, because they became basic for my whole life.
of mind I took part in the war; these war experiences fortified my belief in God especially, and also, therefore, my decision to continue with my theological studies.
THE PRESIDENT: I don't quite follow that, Witness. You say that your experiences in the war fortified your vows to the Supreme Being. That is not quite clear to me.
THE WITNESS: Yes, the experiences I had as a soldier have fortified me in my relationship to God, my personal experiences.
THE PRESIDENT: Your experiences in the war made you all the more religious, is that what you are telling us?
THE WITNESS: No, all I wanted to sap is that my own personal experiences as far as guidance and protection go, fortified me in my belief in God.
THE PRESIDENT: Well, did you believe in God before you went into the war?
THE WITNESS: As I said, I did. I already said the thought of my having to take part in the war made me look for and find a relationship to God which I found at that time became even fortified through the fact that I was saved in the war. It was fortified through this very fact.
THE PRESIDENT: Very well.
Q. (By Dr. Bergold) Did you want to become a pastor, a clergyman, or did you have other plans?
A. When in 1919 I resumed my theological studies in Kiel I intended to become a clergyman, but the meeting with the professor of theological studies of the Old Testament,Dr. Salinawakened other wishes in me. His simple manner, his activity and his teaching fascinated me so much that I specialized more and more in the Old Testament. In a successful work on an academical paper, in which I dealt with the influence of Egyptian religion on the Jewish race, I drew professor Salin's attention to my work.
I became his pupil, and I studied Assyrian and Babylonic history, their life and their writing, and Arabic. As an aim I had a lectureship for ancient Oriental languages, history and history of religion. Inflation put an end to this plan. Apart from that the salary as a private lecturer was so small that it made marraige impossible, or at least for the time being. Thus I was forced to lock for another job in order to find a firm basis for my existence.
Q. Will you now tell us of your life from university days until you were first ordained?
A. I shall be brief. After six semesters (terms) of theological studies, on the 29th of April, 1922, I graduated in Kiel, and I passed my first theological examination. Then I got some practical training which consisted of attending classes at the theological preachers seminary, in Pretsch in Holstein, which lasted for six months, and in the so-called training vicarage with the dean in Neumunster in Holstein. After this period of practical training I passed on the 23rd of October, 1923, the second practical theological examination. As this profession was very much filled up, I was without a job for one year. On the 9th of November 1924, I was ordained as a pastor in Kiel, and after that I became alocal vicar, as a deputy of the regular pastor who had become ill, and I was sent to Angeln near Flensburg, On the 24th of September, 1925, I was elected the pastor of the small community Kasing, near Tonning at the Eider River, which is at the west coast of SchleswigHolstein. This was my first permanent job. I married in January, 19241925, and I have three children.
Q. Did you give up your scientific plans?
A. First I was, of course, taken in completely by my duties of the vicarage. Then I again became interested in the ancient Orient and in the Old Testament, and especially when in 1926 in Berlin, I accidentally met Professor Salin - in front of the university, who had been called to Berlin in 1922. He asked me to take up my habilitation, and I asked for my literature thesis in Kiel entitled, "The language of the Book of Hiob."